THE DEPARTMENT OF LABOR (DOL), THE AGENCY charged with protecting the labor market in the United States, recently announced plans to have final rules of the Program Electronic Review Management or PERM system in place during April of this year. In March 2003, the DOL stated that it hoped to finalize its PERM regulations by July with a commencement date in October 2003. No matter when PERM actually arrives, PERM will dramatically change the labor certification application process from its current version. One of PERM's most attractive feature is that it will, by way of electronic filing of the labor certification application, reduce adjudication time to a mere 21 days. This is particularly appealing to applicants for permanent resident application (the “green card”) who come from one of the traditionally backlogged countries, such as India. On the other hand, the program is already stirring up controversy with immigration lawyers, employers, and employees alike as it will require adherence to a more strenuous recruitment period than is required under the current system.

To distinguish PERM from the two labor certification application filing methods, a brief overview of the current system is useful. The first is known as the traditional filing method and the second as the Reduction in Recruitment (RIR) process. Cases filed under the RIR method, it was hoped, would alleviate the backlog of traditionally filed cases . With the April 30, 2001, filing deadline under Section 245(i) of the Immigration and Nationality Act (INA) , terrorist attacks of September 11, 2001, and an economic downturn, both methods have become backlogged .

The purpose of filing a labor certification application is to protect the U.S. labor market, and under either filing method, employers are required to show that there are not sufficient U.S. workers, who are able, willing, qualified and available to perform the work at the prevailing wage.

Under the traditional filing method, employers first file the labor certification application with the State Workforce Agency (SWA) or the State job service, which in California is the Employment Development Department (EDD). The SWA closely supervises the 30-day recruitment period and results. The process begins with the placing of a job order in the state job bank and requiring the employer to place an advertisement for the job opportunity in a newspaper or other appropriate publication. Resumes of potential applicants are sent directly to the SWA which forwards them to the employer. Employers should then contact suitable applicants, schedule them for interviews and report the recruitment results to the SWA. If it is determined that no U.S. worker is found to fill the position, the SWA forwards the case to the DOL. It is not unusual for beneficiaries of traditionally filed cases to wait for periods of upwards of two years or more for adjudication of their case.

In the alternative, an employer may file a labor certification application with the SWA under the Reduction in Recruitment (RIR) scheme if the employer satisfactorily document it has already adequately tested the labor market without success.

An RIR application must be accompanied by documentary proof of good faith efforts to recruit U.S. workers during the six-month recruitment period immediately preceding the filing of the application. Employers may demonstrate their good faith recruitment efforts by submission of proof of having placed ads in newspapers, job fairs, internet listings, and other methods. SWA will review the RIR application, and if satisfied, forwards it directly to the DOL regional office.

In an effort to reduce the number of cases filed under the traditional method, the DOL issued a conversion rule . A case that was filed under the traditional method may be converted to an RIR case if the conversion request was filed prior to August 3, 2001, without loss of the Priority Date . Conversion requests must be accompanied by a showing of good faith recruitment for the six-month period immediately preceding the filing of the conversion request. Conversion requests filed after the SWA already forwarded the case to the DOL or where the SWA has already placed a job order will not be considered for conversion.

PERM would replace the current labor certification application system, allowing for electronic filing of the labor certification application directly with the DOL eliminating the SWAs initially review of the application. The current system only provides for mail-in applications, which are first sent to the SWA and which, after review and determination, forwards applications to the DOL. It is anticipated that PERM will provide for a conversion method of pending labor certification application filed under the RIR scheme.

Under PERM projected processing times would be reduced from what is now nearly two years to 21 days. PERM will also change the SWAs' involvement in the labor certification process. Under the current system, the SWAs review the recruitment results submitted by employers, the beneficiary's qualification and, in traditionally filed cases, may follow up with candidates to verify if they had been contacted by employers. The PERM program will minimize the role of the SWAs to merely being responsible for issuing prevailing wage determinations. PERM will eliminate the 5% variance as it is currently provided for prevailing wage determinations, and may permit employers to submit alternative wage determination only after having submitted a request to the SWA prior to recruitment.

Recruitment periods will change from what is now under RIR a six-month period immediately preceding the filing of the application to requiring ads having been placed at least 30 days before filing the labor certification application. Ads cannot be older than 180 days. At a minimum two printed ads spaced 28 days apart in a Sunday edition of a newspaper of general circulation must be placed in the section appropriate for the job classification. The job description must be specific, name the employer, state the job site and wage. PERM distinguishes between professional and non-professional positions. Ads for non-professional positions, those that do not require a college degree or higher, in addition to having been placed in Sunday newspapers must be listed for 30 days with the SWA. Positions for professionals are sub-classified by college or advanced degree. Advanced degreed positions require addition recruitment steps. At least one ad must be in a professional or trade journal, and three other steps, such as recruitment at job fairs, on-campus, through recruiters or professional/trade organizations, the employer’s or a job search web site.

PERM considers U.S. workers as qualified even if they do not meet every one of the employer’s job requirements. If, for instance, the U.S. worker is able to acquire the skills on the job, employers cannot reject that candidate as not meeting the minimum job requirements. Where a company experiences lay-offs, the employer must notify and consider those U.S. worker it laid off within the six month period of filing the application.

PERM applications are filed electronically, and as such, it is not practicable to submit supporting documentation with the application. Employers must retain documentation at their place of business, closely documenting the efforts undertaken, the number of applications received, the number of applicants hired or rejected, and the lawful job-related reasons for rejecting U.S. workers who applied for the job. In the event of an audit, the DOL requests recruitment documentation by way of an audit letter, requiring employers to respond within 21 days. Failure to respond to the audit letter will result in a denial and a finding that there was a misrepresentation. Employers who respond but fail to submit all requested materials will be subjected to a two-year closely supervised recruitment period with more strenuous recruitment rules. If the documentation submitted as a result of the audit is complete and viewed as consistent with the application, the application is certified and returned to the employer. Lastly, the DOL may revoke a previously approved application within one year of certification or when the beneficiary's visa number becomes available, whichever comes first. Employers may appeal DOL's Intent to Revoke the application to the Board of Alien Labor Certification Appeals (BALCA).

Some consider the PERM program an improvement over the current system. There are certainly parts of the program that would benefit employers and employees, such as the promised speed of adjudication of the application. Still, the program, as it is proposed, seems flawed in many ways. There is concern that the program would result in fraudulently filed applications. As proposed, the program would prompt an increase of DOL enforcement action, which has a potential negative impact on the U.S.’s need for foreign labor, and may have a snowball effect on the U.S.’s ability to stay competitive in the global market.